Carpenters, Local Union #1104

CARPENTERS, LOCAL UNION # 1104 Carpenters, Local Union # 1104 (The Law Company, Inc.) and B. J. Camp. Case 16-CB-860 December 12, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On August 9, 1974, Administrative Law Judge Ber- nard J. Seff issued the attached Decision in this pro- ceeding. Thereafter, General Counsel filed exceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge, except as modi- fied herein, and to adopt his Recommended Order. The complaint alleged that Respondent Union vi- 'olated Section 8(b) (1)(A) by refusing to represent em- ployee B. J. Camp in respect to his "layoff/discharge" on April 5, 1974. Camp was hired by The Law Company, Inc., as a carpenter on February 18, 1974. On April 5, he was laid off together with another carpenter because work was slow. The Employer selected Camp for layoff while retaining several other carpenters because it considered Camp incompetent. Camp complained to the business agent for the Respondent Union, H. N. McCoy, that under the provisions of the standard collective-bargain- ing agreement his layoff was improper since he was the carpenter steward on the job. The standard contract provided: The Steward shall not be discriminated against, or dismissed. If a Steward is incompetent in the per- formance of his work as a journeyman carpenter, permission may be granted by the business repre- sentative to lay him off. Although The Law Company was not a signatory to this contract with Respondent Union, it had agreed to conduct its operations in accordance with the terms of the typical carpenter standard agreement. On April 10, Camp asked McCoy if he would talk to The Law Company about the layoff. McCoy said he would. Five days later Camp asked McCoy whether he had been in touch with the Employer. McCoy replied that he had not had time. Camp then asked if McCoy would represent him in regard to the layoff. McCoy said that he would but that he could not go out to see 537 the Employer that day because his secretary was sick. On April 16, Camp asked McCoy to go out to the job with him. McCoy answered that he had spoken to the Employer, that the latter had said that Camp had been fired for incompetence, and therefore there was nothing that McCoy could do for Camp. Camp then com- plained to A. C. Shirley, the state representative for the general president of the Union, that McCoy had refused to process his grievance. After contacting McCoy, Shirley told Camp that McCoy had reported that the Employer had discharged Camp for incompe- tence. Shirley then said that nothing could be done for Camp who then filed the present unfair labor practice charges. "A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective-bargaining unit is arbitrary, dis- criminatory, or in bad faith."' A labor organization is not required automatically to process a grievance of a unit employee.' If, in good faith, it believes that the grievance is without ment, it may refuse to entertain it without running afoul of its duty of fair representation. Here, McCoy actually contacted the Employer before rejecting Camp's grievance and ascertained that Camp had been discharged for incompetence. He had no rea- son for believing and there is no contention that the Employer's motivation was otherwise than as stated. He believed, as did Shirley, that the Employer was within its rights in terminating Camp. There is no evi- dence that Camp was treated differently than any other unit employee. Although there is some evidence of an- tagonism between Camp and McCoy, there is insuffi- cient basis for concluding that McCoy's conduct was motivated by this hostility between the two men. Under these circumstances, we find that the General Counsel has not proved by a preponderance of the testimony that Respondent Union's refusal to represent Camp in respect to his discharge was "arbitrary, discriminatory, or in bad faith." Accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. Vaca et al v Sipes, 386 U S 171, 190 (1967) 2 Retail Clerks Union, Local No 1357 (Lit Brothers), 192 NLRB 1171 (1971) 215 NLRB No. 98 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE . BERNARD J. SEFF: Administrative Law Judge: This proceed- ing is based on a charge filed by an Individual, B. J. Camp, hereinafter called "Camp" or the Charging Party against Carpenters, Local Union # 1104, hereinafter identified as either the Union or the Local. The charge was filed on April 26, 1974, and the complaint was issued on June 11, 1974.' It is alleged in the said complaint that the Union failed and refused to process a grievance concerning Camp, the union shop steward on the job, and thereby violated Section 8(b)(1)(A) of the Act. Respondent Local denied it had com- mitted any unfair labor practices but admitted that The Law Company, hereinafter referred to as the Company, is engaged in commerce and that it, the Union, is a labor organization within the meaning of the Act. Upon the entire record in the case and from my observa- tion of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMPANY AND ITS BUSINESS; THE LABOR ORGANIZATION INVOLVED The Company, a State of Kansas corporation with main office located in Wichita, Kansas, is engaged in general con- struction activities. Presently the said Company is engaged as a subcontractor in the construction of a shopping center located in Tyler, Texas, where the instant case came on for hearing in Tyler, Texas, on July 11, 1974. During the past year it purchased, transferred, and deliv- ered to its Tyler, Texas, construction site goods and materials valued in excess of $50,000 across state lines directly from states other than the State of Texas. I find that The Law Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Contentions of the General Counsel According to the General Counsel, on or about February 18, Camp was hired and became the shop steward on the job. He was elected to this position by his fellow workers. It is the practice of the Union to designate an individual like Camp to be shop steward; or he is elected by his fellow workers; or he simply assumed the job. It is also common practice for the said shop steward to immediately notify the Local Business Agent that he is the Union's shop steward. It was further stated by the General Counsel that at the time Camp was laid off there were four carpenters on the job. Because work was slow on the job the Company decided it needed only two carpenters. The superintendent of the pro- ject, Fred Doerflinger, instructed his foreman to lay off Camp and one other carpenter. In accordance with this instruction Camp was laid off. During his testimony Doerflinger stated I All events took place in 1974 unless otherwise indicated. that he decided on the two men to be laid off on the basis that the Company decided it would dispense with the services of Camp and the other employee involved in the layoff on the basis of eliminating the employees who were not carrying their load. Doerflinger also testified that Camp was laid off because he was incompetent. The General Counsel offered a copy of the Carpenters standard form contract in evidence. It appears in the record as General Counsel's Exhibit 2. It is not disputed, and in fact it is explicitly admitted, that The Law Company is not a signatory to this union agreement. However, the Company admitted, through the testimony of Fred Doerfilinger, project superintendent, that, whereas it is the regular practice of the Company to operate its business under a signed contract with the Carpenters on other of its projects located elsewhere in the United States, his Company has not signed a contract with Local 1104. However, the Company had agreed to con- duct its Tyler, Texas, operations in accordance with the terms of the typical Carpenters standard form agreement. B. The Contentions of the Parties In his opening statement the General Counsel outlined the theory of his case as follows: Mr. Camp was working on the job for the Law Company and was Job Steward on this job. At the time that Mr. Camp was laid off there were about four carpenters working on the job. The employer decided that he only needed two carpen- ters because of the work schedule and instructed his foreman to lay off two of the carpenters. Mr. Camp was one of the carpenters who was laid off. Under this contract, which we understand that the car- penter's union was working under with the Law Com- pany, a Job Steward is not to be laid off unless the employer seeks the permission of the Business Agent. Now, this was not done, your Honor, apparently because of the contractor not being aware of this man's status as Job Steward. Mr. Camp went to his union representative, Mr. McCoy, and asked for his assistance in the matter. After going down there (to the union hall) three times, well, finally Mr. McCoy told him that there wasn't anything that he could do for him. JUDGE SEFF: Did he give a reason? MR. JONES: He said, there is nothing I can do for you because you are incompetent. The Contract itself does not state that even if the Job Steward is considered to be incompetent he still must get permission from the Business Agent to lay. the man off, the employer must (do so). Because of these facts we feel the evidence will show that Mr. Camp was denied his right to be represented in a CARPENTERS, LOCAL UNION # 1104 . 539 grievance by the Union Business Agent. This is an 8(b)(1)(A) violation. n JUDGE SEFF: I am having a little difficulty understand- ing what validity the contract has as a formal exhibit because the union representative has stated for the re- cord that this company, the Law Company, and Local 1104 of the carpenter's union has no contract. Therefore the terms and conditions as set forth in this document are not binding on the Company since they didn't sign it. The only relevance that it has, it seems to me, would be to say that the Union was willing to work under the terms and conditions of its typical contract even though not signed by the Law Company. Concluding Findings and Analysis The sole issue presented in this case is whether, as alleged in the complaint, the Respondent in connection with the grievance made by Camp refused properly to represent him in violation of Section 8(b)(1)(A) of the Act. The record shows that Camp got in touch with A. C. Shirley, representative for the General President of the Union, who was contacted by Camp. Camp complained that the Local Union business agent refused to process his griev- ance to arbitration; Shirley told Camp that McCoy, Local Union representative, stated to him that "Mr. Shirley said that McCoy told him that the Law Company had fired me for incompetence and there wasn't anything that he could do for me." The record goes on as follows: So, I told him that if he wasn't going to try to represent me that I was definitely going to the NLRB Contention of Charging Party, Robert Camp. He testified that all together he has been a member of several locals of the Carpenters Union since 1970. He began to work for The Law Company on February 18, 1974 The Company had just moved into its office in Tyler. He began to work immediately. A few minutes after he was hired a second carpenter, William F. Cole, was hired Sometime during the first week of his employment a carpenter named Oscar Eaton was hired as the carpenter foreman. Camp was hired by the Company's project superintendent, Fred Doerflinger. For 5 or 6 weeks these three men worked together as the carpenters on the construction job The record shows that Camp'explained his position as job steward as follows. It is customary that when carpenters are hired on the job that most of the time the first man hired . . is the foreman and the second man more or less becomes stew- ard There are times that the Business Agent appoints the steward. It is either that or the men elect a steward Camp further explained that he became job steward and told Cole (fellow employee) that either he or Cole would become steward Cole did not want the job so Camp became the steward on the job. In describing his duties as steward, Camp said his only job duties as steward consisted of trying to keep the work that belonged to the Carpenters. There were other members of construction craft unions also working at the construction site. According to Camp, he had to talk to the foreman for the laborers because the laborer's foreman "was the worst about jumping in and doing our work." He also discussed this situation with Assistant Superintendent Bob Knutson. He also spoke to the Laborers business agent, Mr. Wilson, from Longview, Texas. This dispute with the laborers' foreman was never taken care of and remained a continuing problem. Camp did not exercise any other job function as a Job Steward. Then he said, "Hell, I am not trying to stop you from going to the NLRB. Go right ahead. Do whatever you want to do." Q When Mr. McCoy made the statement to you that you had been fired for incompetence did you again dis- cuss the contract with him? A Well, I read the stipulation in the contract as to how a steward could be laid off and given proper notice and the Business Agent contacted. • s * s Q. All right. A. And he said that they had not contacted him. Q. OK A. He said that they had not asked him anything. Q. All right. Is there any indication in there as far as an incompe- tent steward as to what could be done A. Yes sir, there is. A steward can be laid off for incompetence provided that permission is granted by the Business Representa- tive. Q. OK. Mr McCoy told you that they had not sought permis- sion? A That's right. The record also shows that Camp had had previous prob- lems with McCoy on previous grievances. The introduction of this evidence was objected to by the General Counsel on the ground that the incidents relating to previous difficulty had by Camp with McCoy concerned events which trans- pired long before the 10(b) period. I overruled his objection and permitted further inquiry by Respondent for the purpose of background information since the testimony was offered for the purpose of showing McCoy's motives in denying Camp's earlier grievances. As it later developed this tes- timony did not reveal any information germane to the issue in the instant case. The reference by Camp to a stipulation in the contract refers to the following quotation from Article IX, on page 5 of General Counsel's Exhibit 2: 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The employer agrees that there shall be a steward on all jobs under the jurisdiction of this Agreement where any Carpenters are employed . The Steward shall be one of the men working when any overtime work is performed. The Steward shall not be discriminated against, or dis- missed, if a Steward is incompetent in the performance of his work as a Journeyman Carpenter , permission may be granted by the Business Representative to lay him off. [Emphasis supplied.] It was brought out on cross-examination by Respondent that Camp did not ever notify the business agent that he had been appointed as job steward. From the above it seems abundantly clear that, even if the contract which The Law Company admittedly did not sign but ostensibly agreed to follow in practice, Camp did not comply with its requirement to notify the Union that he had bL ome the job steward. In any event it is clear that under applicable precedents Camp was not discriminated against and Respondent Union did not violate the Act. I so find. The principles of law that must guide decision on the issue in this case are well settled. A union occupying an exclusive bargaining status must serve the interests of all bargaining unit employees fairly and in good faith, and without hostile discrimination against any of them on the basis of arbitrary, irrelevant, or invidious distinctions. See, e.g., Vaca et al. v. Sipes, 386 U.S. 171 (1967); Local Union No. 12, United Rub- ber Workers [Goodyear Tire & Rubber Co.] v. N.L.R.B., 368 F.2d 12 (C.A. 5, 1966), cert. denied 389 U.S. 837 (1967); Miranda Fuel Co., 140 NLRB 181 (1962). The Supreme Court has recognized, however, that in the interest of effectively administering a contract's grievance- arbitration machinery a union must be allowed a considerable range of discretion in screening out, settling, or abandoning, short of arbitration, those grievances which the Union in good faith believes do not justify that costly and time-con- suming final step. Vaca v. Sipes, supra at 191-192. Accord- ingly, the Supreme Court has held that an individual grievant has no absolute right to have his grievance taken to arbitra- tion. No inference of unfair representation may, therefore, be drawn simply from the bargaining agent's failure or refusal to press a grievant's case through the ultimate stage of a contract's grievance procedure, or, for that matter, through any intermediate stage. And this, it has been held, is so even though it appears that the Union may have acted negligently or exercised poor judgment in its handling of a grievance. Bazarte v. United Transportation Union, 429 F.2d 868, 872 (C.A. 3). A breach of the statutory duty of unfair representa- tion, the Supreme Court has made clear, "occurs only when a union's conduct toward a member of the collective bargain- ing unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, supra at 190. Applying that test to the facts established by the record in this proceeding, I think it clear that the General Counsel has not made out a case of unfair representa- tion. No countervailing evidence was introduced at the trial to controvert Project Superintendent Doerflinger's testimony that Camp was discharged because he was incompetent. Concluding as I do that General Counsel has failed to establish that Respondent breached its obligation of fair rep- resentation, as alleged, I shall recommend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. The Law Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent has not, as alleged in the complaint, engaged in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety.